Presidential Overreach Should Be More Than Just Another Partisan Fight, But That’s What It Will Be

Late last month, Speaker of the House John Boehner announced that he would be seeking authority, which will obviously be granted, from the Republican controlled House of Representatives to file a lawsuit against President Obama over what he claimed were abuses of executive power and usurpation of the duties and powers assigned to Congress by the Constitution. Yesterday, Boehner posted an Op-Ed at CNN setting out in more detail the basis for this planned lawsuit. Boehner doesn’t go into much more detail about the factual or legal basis for any planned lawsuit than he had before, obviously, and because of that and the way that the relationship between the President and the House Republicans has gone these past four years, it’s easy to dismiss this as a political stunt. Although I think that many of the issues that a lawsuit like this could raise are vitally important and in need of discussion by American voters and the media, that’s essentially the take I took in my initial reaction to Boehner’s announcement. This conclusion seems to be backed up by the fact that it seems unlikely that a Federal Court is going to be all that eager to even reach the case on the merits, instead it would be likely to dismiss it under the “Political Question” Doctrine.

(CNN) - President Barack Obama called House Speaker John Boehner’s plans to file a lawsuit over the President’s use of executive action “a stunt,” in an interview with ABC News Chief Anchor George Stephanopoulos.

“You notice that he didn’t specifically say what exactly he was objecting to. I’m not going to apologize for trying to do something while they’re doing nothing,” the President said.

The interview aired on ABC’s “Good Morning America” Friday morning. It was conducted Thursday during the President’s trip to Minneapolis, where Obama held a town hall meeting.

(…)

He repeated his frustrations about the immigration reform bill passed a year ago by the Senate that’s been stalled in the House, and having to use executive action.

“The majority of American people want to see immigration reform done. We had a bipartisan bill through the Senate, and you’re going to squawk if I try to fix some parts of it administratively that are within my authority while you are not doing anything?'” the President added.

Responding to Obama’s comments, Boehner spokesman Michael Steel said Friday in a statement that “the American people, their elected representatives, and the Supreme Court have all expressed serious concerns about the President’s failure to follow the Constitution. Dismissing them with words like, ‘smidgen’ or ‘stunt’ only reinforces their frustration.”

The moment was reminiscent of George W. Bush’s taunting Iraqi insurgents over 10 years ago by saying, “Bring ‘em on.”

It was irresponsible bravado from a man who was not himself at the receiving end of IEDs and constant attacks that would go on to cost us thousands of military personnel. I imagine some lawyers at the Justice Department may feel the same way about Obama’s “sue me” taunt. They are the ones being hammered in federal courts over sweeping new interpretations and unilateral executive actions.

The renewed promise to go it alone is a familiar refrain from this President. He even pledged to take unilateral action to circumvent Congress in front of both Houses, in his State of the Union address this year — to the curious delight of half of Congress, which applauded wildly at the notion of being made irrelevant.

The President was as good as his word. When Congress failed to pass the Dream Act loosening immigration laws for certain groups, the President ordered the same result unilaterally. His administration also ordered massive changes in Obamacare — from lifting statutory deadlines, to exempting classes of business, to shifting hundreds of millions of dollars from appropriated purposes to other uses.

The political slogan of “no compromise” has migrated into legal strategy with disastrous results. That is precisely what happened in the recess appointments decision in NLRB vs. Canning. I testified on the President’s recess appointments in Congress after they were made and said that the nominations in my view were flagrantly unconstitutional.

The fact that the administration decided to force a confrontation on such a weak case shows not just a lack of judgment but a cavalier attitude towards the costs of such losses. While he clearly has authority to set enforcement priorities in areas like immigration law, Obama has repeatedly stepped well over the line of separation.

These acts of defiance of Congress often come with chest-pounding acclaim, but they also come with costs. For example, by violating the Constitution on recess appointments, a huge array of rulings out of the National Labor Relations Board could be invalid — creating havoc in the area.

Likewise, the President’s recent loss in the Hobby Lobby case, regarding contraception provisions of Obamacare, will require huge changes in such coverage . In a case that may be issued any day now in Halbig vs. Burwell, the D.C. Circuit could strike down another unilateral policy on tax credits under Obamacare that would mean that the administration wrongly committed billions of dollars without authority. That decision could jeopardize the very viability of health-care reform.

In our system, there is no license to go it alone. Rather, the Republic’s democratic architecture requires compromise. The process is designed to moderate legislation and create a broader consensus in support of these laws.

Nor is congressional refusal to act on a particular prescription of how to fix the economy or repair immigration laws an excuse. Sometimes the country (and by extension Congress) is divided.

When that happens, less gets done. The Framers understood such times. They lived in such a time.

While Obama did not create the uber-presidency, he has pushed it to a new level of autonomy and authority. It is a model that Democrats may soon regret. Just as Obama has unilaterally rewritten federal laws and ordered the nonenforcement of others, the next President could use the same authority to gut environmental or employment discrimination laws. An uber-President is only liberating when he is your uber-President.

While I still believe that Boehner’s lawsuit is nothing more than a politically motivated stunt that is unlikely to find much success in the Federal Courts when it is filed, Turley raises important points here. President Obama is most certainly not the first President to accumulate more power in the Executive Branch, and to seek ways to make end runs around Congress when the Legislative Branch is blocking his agenda, that certainly doesn’t make the actions justifiable. President Obama’s response to the threat of a Separation Of Powers lawsuit is both cavalier and in appropriate for the President of the United States. His comments that he only ‘goes around’ Congress because Congress refuses to act on issues like immigration reform is quite simply irrelevant. As Turley has noted, when the Founders drafted the Constitution they created a system where conflict was not only possible but, in some sense, an inherent part of the system itself. Ideally, the Executive and Legislative Branches should not be “working together” so much as they should be working to represent their respective constituencies. At times, such as now, when the nation is deeply divided politically, that’s going to mean it will be hard to get things done. However, that type of gridlock is a feature, not a bug. As Steven Taylor has pointed out in many posts he has done on the topic before, most recently here and here, institutions matter and there’s certainly an argument that thing would work differently if our political system was organized differently. However, we have the system we have and it strikes me that we ought to be more concerned with Presidents of any party who use their executive powers to do things that, properly, ought to be left to the legislature. We have the system we have, however, and it strikes me as inappropriate for the President to respond to serious concerns about a core Constitutional issues in such dismissive tones.

NBC News’s Perry Bacon notes that there are definite political benefits for the President in picking a fight with Congress right now, and it’s also blindingly obvious that there are similar political benefits for the House GOP to pick a fight at this time as well. Both sides are choosing positions that will appeal to their base voters as we head toward the upcoming midterms. The President aiming for both Democratic voters and independents who have a negative view of Congress, and Speaker Boehner is aiming for the Republican base voters and their negative opinions of President Obama. In the end, then, it’s obvious that this entire lawsuit idea will become just another political football rather than an opportunity for a serious conversation about a serious issue. Both Speaker Boehner and President Obama will be to blame for that.

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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As Turley has noted, when the Founders drafted the Constitution they created a system where conflict was not only possible but, in some sense, an inherent part of the system itself.

So what’s the problem?

Boehner finds it easier to file stunt lawsuits than to herd Congress into doing anything, hence the conflict.

And the end result of a conflict is either a compromise, or we get a winner and a loser. Boehner’s party refuses to compromise, and their winning streak is mixed. Maybe the courts will be the cavalry that saves his ass from his own incompetence.

Did the founders really envision and plan for a scenario in which a party controls enough of the legislature to effectively put a halt to all legislative governance out of spite? I submit that they did not.

Ideally, the Executive and Legislative Branches should not be “working together” so much as they should be working to represent their respective constituencies.

The branches have the same exact constituency: the people of the United States. Individual members may have their constituencies in districts or states, but collectively theirs is the same as the executive. The House, under Republican leadership, has abandoned governance and is now actively hostile to the very concept. I don’t think Madison, Jefferson, and the rest ever imagined such people would be elected to serve.

I think Boehner is trying to use the court to establish the rules of the game. If the court rules that the president has crossed the line, this will serve to educate the country, the court being an independent third party in this dispute between congress and the president. The lawsuit will not settle the political dispute, but it might clarify who is in the right.

The rightful power of the president is more limited than one might think.

Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United
States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the
Recess of the Senate, by granting Commissions which shall expire at the End of their
next Session.
Section 3. He shall from time to time give to the Congress Information of the State of the Union,
and recommend to their Consideration such Measures as he shall judge necessary and
expedient; he may, on extraordinary Occasions, convene both Houses, or either of them,
and in Case of Disagreement between them, with Respect to the Time of Adjournment,
he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors
and other public Ministers; he shall take Care that the Laws be faithfully executed, and
shall Commission all the Officers of the United States.

So according to Jonathon Turley and Doug, the Constitution IS a suicide pact….
The problem is that the original framers of the Constitution simply did not envisage political parties ; or rather they did and decried them as evil. Now Mr. Turley surely knows this. He should not only be urging a limitation of Presidential power but the dissolution of political parties altogether. Only if that happens would the system work as originally envisaged. Since that ain’t gonna happen, it’s no use wringing his hands about how we have departed from the original intent of the Founders.

I thought the Dems loved the Roberts Court when they affirmed Obamacare. The Court contrary to the crap you spout does not legislate and is above politics. Remember John Paul Stevens who was supposed to be a reliable GOP vote? That didn’t exactly turn out as planned.

The Court contrary to the crap you spout does not legislate and is above politics.

Seriously?
So for the very first time ever…ever…EVER…the Scotus decided that corporations…artificial legal entities…have religious beliefs and that those beliefs trump those of natural persons…and you don’t think they are legislating or are above politics?
If that is so you are at least a little delusional.

I think is is an example where both sides really do it. When Bush was in power, the Republicans found they could live with presidential powers, the Democrats were against it. Now that Obama is in power the positions are suddenly reversed.

Sometimes false equivalencies are equivalent after all. I suspect Nixon was the last time the two parties simultaneously thought it was a bad idea.

Ron, do you ever get tired of writing the same comment about the Republicans are idiots. Do you have nothing to add? Why should the Democrats ever try to change policy when there are so many supporters like you who automatically support the Democrats and automatically hate the Republicans?

The Republicans are faced with the choice of either giving the Democrats what they want or obstructing the Democrats. The executive branch has shown zero interest in actually negotiating a settlements between the House Republicans and the executive branch. Look at how immigration reform is viewed as either the House Republicans vote for the Senate passed bill that will be a huge win for Democrats or they obstruct. The Democrats never ask what it would take for the Republicans to pass some form of comprehensive immigration reform that may accomplish some of what the Democrats want and some of what the Republicans want.

The Court’s decision basically stated that religious for profits or corporation should receive the same rights as non profits. Corporations gained this status after Citizens United v. Federal Election Commission which effectively created the Super PACS.

The plaintiffs in Hobby Lobby argued a claim based on their religious beliefs and the court ruled in their Favor based on the arguments they made. Employees will not lose coverage, but it just means the insurance companies pay the Bill instead of Employers. Premiums will probably go up, but women are not being denied

It was meant as irony. Ron always seems to be in the top two or three comments and always makes the same point about Republicans, talk radio, and Fox News. What is not ironic is that no one ever calls him out for the repetition.

If anyonoe wants to discuss what should not be a partisan fight, it is the Import-Export Bank. But since Republicans are the ones pushing to get rid of it, the Democrats seem to feel the need to defend it. What the Democrats fail to understand is the irony of going against their talking point criticizing corporate welfare.

Yes, if Obama was a virtuous man he would sit back and accept that his administration will not be able to achieve anything legislatively because the Republicans have decided to throw reason out the window and oppose en masse any agenda he wishes to implement, not because they disagree with it but because allowing it to pass would benefit Obama and the Democrats.

I mean, I’m worried about encroaching presidential power, but only insofar as I understand Congress cedes this power regularly to the presidency anyway. Congress could do exactly what Obama says: deal with it legislatively. But they won’t do that, now will they? Easier to place blame than take action.

I mean, every problem that is a result of executive overreach could be corrected with legislation to clear up irregularities or enshrine existing procedure into law. Every single one. It’s not like Obama’s on the verge of becoming an unstoppable tyrant if he gains any more unilaterally-seized power. He’s literally a dude chained by a system and rebelling against it in small ways to see if the chains will bother continuing to bind.

The title and focus of this article is completely off. Presidential overreach is a symptom of the disease, not the disease itself.

Congress is the most powerful branch of our government. The president is, Constitutionally, a stooge that is required to enact Congress’s will. If the president goes rogue and tries to change laws by himself (which is what’s happening according to the article), Congress can pass new laws to rein him in. To do this, Congress has to pass laws. To pass laws when both chambers are controlled by different political parties, there has to be compromise. To compromise, you have to negotiate.

Now if I do some research about congressional negotiation, I’m sure that I’ll find that all of our recent gridlock is due to good-faith disagreements on principle between our political parties, right?

Sure, but it is a matter of degree. We are reaching the point when congress can pass a law, and the president can just ignore it, or at least can pick and choose which parts he will abide by. That is about the point that we can say the president is above the law.

I mean, every problem that is a result of executive overreach could be corrected with legislation to clear up irregularities or enshrine existing procedure into law.

Of course. The reality of our legal system is that congress legislates. If the two parties are at loggerheads and cannot pass legislation, that is how it is. Just because their motives are petty in your opinion or mine, or based on purely political considerations, does not mean the legislative function passes to the president. Other presidents knew how to motivate congress to deal with issues they would rather not deal with and make things happen. It is what leaders do. Clinton could do it. Obama can’t and won’t.

We are reaching the point when congress can pass a law, and the president can just ignore it, or at least can pick and choose which parts he will abide by. That is about the point that we can say the president is above the law.

What is interesting about this so-called “above the law” complaint is that George W Bush issued about 130 signing statements and Barack Obama has issued about 30, yet Republicans are falling all over themselves to sue Obama.

This is not really about principle, this is about supercharging the base in time for the 2014 midterms – the Senate is at stake here. This episode shows us is that when it comes to hardball partisan politics Republicans are more willing to go the distance than are Democrats.

Now if I do some research about congressional negotiation, I’m sure that I’ll find that all of our recent gridlock is due to good-faith disagreements on principle between our political parties, right?

That’s a rhetorical question. You and I both know the answer. But you are wrong to think congress can pass laws to rein in the president. A transformational president will not be bound by the laws of the nation he is transforming. He will laugh at your laws. He will ignore laws if he pleases, or rewrite them as he thinks they should have been written. As long as it is one party versus the other party, the president wins. It is only when it is congress versus the president that the president loses.

Other presidents knew how to motivate congress to deal with issues they would rather not deal with and make things happen. It is what leaders do. Clinton could do it. Obama can’t and won’t.

How does Obama “motivate” a Republican congressional delegation that is dedicated to opposing everything he does, and is willing to shut down government and countenance a default on American debt?

I suppose that Obama could “motivate” Republican legislators to take positive action if he would just capitulate to them and agree to rescind or defund ACA. I’m sure that Bill Clinton would counsel him to do just that.

But you are wrong to think congress can pass laws to rein in the president. A transformational president will not be bound by the laws of the nation he is transforming. He will laugh at your laws. He will ignore laws if he pleases, or rewrite them as he thinks they should have been written.

Then Congress can impeach him, try him, and remove him from office. They have a clear remedy in the Constitution for an executive that assumes too much power.

But they won’t do that because they know a good deal of Obama’s “unilateral actions” are popularly-supported (such as the DREAM Act). They have to accuse the president of enacting singlehandedly things the public wanted Congress to do, but Congress didn’t do because of stupid political calculations. And they know there will be backlash for it.

The entire Republican calculus was based on Obama being a one-term president. When that failed, they were left with only absurd actions. They have chosen the absurd, but I’m glad we’re focusing on the president’s abuses of power here as the disease. That’s good diagnosis. Let’s ignore the systematic abrogation of its power Congress has been doing for decades, absorbed as they’ve been in their own petty mindgames.

So for the very first time ever…ever…EVER…the Scotus decided that corporations…artificial legal entities…have religious beliefs and that those beliefs trump those of natural persons…and you don’t think they are legislating or are above politics?

No, it’s really not. The idea that corporations are merely a proxy of their owners and that, as long as the relationship is still clearly visible, the rights of the owners should not be impacted by the form of organization is internationally recognized and pretty uncontroversial. While there are multiple problems with the results and the lower court findings) in this case, there is nothing especially partisan in the concept itself.

It would pass muster without a batted eye in nearly all even heavily social democratic European countries.

Yes…it really is.
The fiction of corporate personhood is indeed an old concept and is, in some cases, a necessary and beneficial fiction.
However this is in fact the first time that the fiction of corporate personhood has been extended to corporate religion…allowing corporations to use those religious beliefs to circumvent laws and cudgel the rights and freedoms of their employees.
Next up…from Ginsberg’s dissent:

Already groups are trying to get special exemptions from an executive order the White House has announced in order to discriminate against sexual-orientation and gender-identity.
So while you’re typing that “it’s really not”…it already is.

The Court’s decision basically stated that religious for profits or corporation should receive the same rights as non profits.

And they told Obama how to do it.
But you don’t think that’s legislating from the bench.
Probably because you agree with this nonsense.
I’m guessing you are a white, straight, Republican male…who as never suffered an ounce of discrimination in your blessed life…so the oncoming flood of discrimination means absolutely nothing to you. Discrimination is what happens to the “others”.
Good for you lucky man.

@Tillman: Then Congress can impeach him, try him, and remove him from office. They have a clear remedy in the Constitution for an executive that assumes too much power.

Gay marriage has won approval in several states by legislative action or popular mandates. There’s a proven solution; why do so many others take the matter to court? There’s a clear remedy for the issue; why get the courts involved at all?

Not going to happen. The House can impeachment, but the trial is in the Senate, and it takes two thirds of the members present voting to remove him. President Obama is virtually untouchable, because he is black. If he were impeached, almost every black person would take it as an attack on them personally. This is only my opinion, but I feel confident it will not be put to the test.

Ok. I’m not quoting this because this sort of thing has been posted by too many people as of late to call any specific individual out.

Stop. It.

I don’t care who started it. “S/He said it first” is *not* a defense.

Posts like this violate the sites TOS:

Remember that the people under discussion are human beings. Comments that contain personal attacks about the post author or other commenters will be deleted. Repeated violators will be banned. Challenge the ideas of those with whom you disagree, not their patriotism, decency, or integrity.

The use of profanity stronger than that normally permitted on network television is prohibited. A substantial number of people read this site from an office or in a family environment.

Recently we’ve relaxed the profanity rules. Don’t make us have to take that back as well.

Finally, just so we are all clear, the only appropriate response to this comment is to acknowledge its contents. Attempting to defend your behavior, or declaring your continued intention to use such language as long as other people use it, will not go well for you.

Likewise, complaining that we’re going after you personally will not go well for you. This was intended for *everyone* and is not directed at a single poster.

@Matt Bernius: Sorry, Matt. Those were both terms that Cliffy used, without any kind of reprimand, so I thought they were fair game. I mean, his last one stood since yesterday afternoon, and collected 4 up-votes.

@Jenos Idanian #13: I didn’t know Gay Marriage was ignoring the duly enacted laws of the Congress, and Congress was filing a lawsuit against Gay Marriage. I didn’t know we elected Gay Marriage to a term of four years of service as the chief executive. Or is your analogy ludicrous?

@Another Mike: Again, if Obama was honestly altering the laws without Congress’s consent, they could pass legislation to affirm that is what he’s doing, and if he continued doing it, they could impeach him. Him being black has nothing to do with a separation of powers issue. The Republicans don’t want to negotiate over legislation, so they can’t come together as a branch and tell Obama to knock it off.

@Tillman: The point I was making is that just because that there is a solution doesn’t mean that it is the only solution.

Besides, impeachment would involve a Congress actually functioning as designed, and isn’t that the justification that Obama is using for his unconstitutional power-grabs? That Congress is too dysfunctional?

BTW, I know it hurts your talking points, but the House has passed plenty of legislation, but Harry Reid’s refused to let those bills even come up for debate.

However this is in fact the first time that the fiction of corporate personhood has been extended to corporate religion…allowing corporations to use those religious beliefs to circumvent laws and cudgel the rights and freedoms of their employees.

That still does not mean that it was legislating from the bench. “Legislating from the bench” does not mean “has results I dislike”. You will note that the other justices (as far as I had a look) did nor argue with the legal merits but rather with the unintended consequences of the reading.

As far as the law concerned this is not an especially outrageous ruling. I would even question if it can be properly grouped under “corporate personhood”. The problem is not with the SC ruling but rather with three different aspects:

1. Lower court finding were abysmal. It seems that a lot of questions that should have raised questions as to the religious convictions of Hobby Lobby (investments, earlier providing these methods etc.).

2. The Religious Freedom Restoration Act

3. Rather than forex in single payer systems, health care was organized as a specific legal obligation of the employer mandated under federal law which makes 2. relevant.

Given these conditions, there was nothing especially improper about the findings. If health care is a burden established by federal law and all federal laws must comply with strict scrutiny under 2. there was really little else to find as much as the result is nonsensical.

The critical part is not the “corporate personhood” bit, but rather that they accepted transactions twice removed (the employer does not dispense contraceptions himself but uses abstract money to pay for a health care plan; this “credit” then might or might not be used by the employee for contraception according to her wishes) as proper religious burden. If that standard holds, “paying wages” would be a religious burden (which just gets saved by the fact that it is not federally mandated).

This is the utter horseshit in the ruling. The “corporate personhood” stuff is just a current cause célébré due to Citizens United but not really the problematic part here.

@Ebenezer_Arvigenius:
Read Ginsburg’s dissent starting on page 13 thru about 18….where she comments on artificial legal entities v. natural persons…and continues that had Congress intended such a huge change they would have said so in the Legislation. She quotes from Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001)

“Congress does not hide elephants in mouseholes.”

She continues and quotes the Legislative record which makes absolutely no mention or suggests no intention that the RFRA cover for-profits…and a Senators Brief that doesn’t recognize free-exercise of rights for for-profits.
Ipso Facto…the Majority changed the intention of the law…SCOTUS is legislating and activist.

@Jenos Idanian #13:
The same was true of interracial marriage before Loving. Do you think that decision should be overturned? Should we have waited for all of the states to end their anti-miscegenation laws on their own?

@Grewgills: Racial discrimination was fought on several fronts. Courts, legislatures, Congress, and social mores were all battlegrounds.

The use of the courts against Obama is a nice, non-nuclear option, unlike impeachment. It’s less likely to boomerang and help him. And there’s nothing in going through the courts now that precluded impeachment later. .

She continues and quotes the Legislative record which makes absolutely no mention or suggests no intention that the RFRA cover for-profits…and a Senators Brief that doesn’t recognize free-exercise of rights for for-profits.
Ipso Facto…the Majority changed the intention of the law…SCOTUS is legislating and activist.

Let’s agree to disagree. The discussion she offers is a classical juridical argument. It’s convincing but that doesn’t mean that the decision is activist. Activism is an interpretation that bends the law to reach a certain purpose.

As stated above, the idea that closely held cooperations are merely tools by which their owners act is not so outlandish to qualify as such. It’s not my preferred reading but completely within the scope of proper jurispudence. This:

In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations.

is not overly convincing imho. It’s an artificial distinction that does not properly distinguish between commercial and public law.

Racial discrimination was fought on several fronts. Courts, legislatures, Congress, and social mores were all battlegrounds.

As is fighting discrimination against homosexuals. You seem to oppose using the courts in the case of homosexuals, are you similarly against Loving and other cases that were part of the fight against racial discrimination? If not, why do you feel one appropriate for the courts and the other not?

@Grewgills: You seem to oppose using the courts in the case of homosexuals, are you similarly against Loving and other cases that were part of the fight against racial discrimination? If not, why do you feel one appropriate for the courts and the other not?

My opposition is based purely on strategy. When people are given a chance to express an opinion on an issue, they tend to accept losing more readily than when they can argue that they were never given a chance to make their arguments.

Remember the fight over Prop 8 in California? The anti-gay-marriage people followed the rules, organized a vote, campaigned, and won. Democracy spoke. And then the losing side went to court, and had the voice of the majority overturned. Then things got really ugly, with people who had worked to oppose gay marriage found themselves targeted for boycotts and other attacks because they had participated in the democratic process and won. It’s still ugly as hell in the Golden State.

Contrast that with the states where gay marriage was approved by some democratic process, like a legislative act or referendum. It’s a total non-issue in those states. Both sides had their say, made their arguments, then held their vote and lived with the results.

It’s called democracy. And, by and large, it works.

I’m willing to trust my fellow Americans. By and large, they (well, we) get things right. It may take a little more time than we like, or more than one attempt, but in the end we tend to get it right.

And once we get it right, we tend to keep it that way.

You want a good, non-controversial example? Prohibition. We got together and decided, collectively, to outlaw booze. We even passed a Constitutional amendment (there’s that darned democracy again). Then, after a few years, we realized that it was a really bad idea, and we undid it (with another Constitutional amendment.)

Trusting people works. If you can’t trust your fellow citizens, then you have no business claiming to support our democratic republic form of government.

@Jenos Idanian #13:
Once again, the relevant analogue is interracial marriage. The objections are similar as are the enclaves that would hold on to discrimination for longer. If we took your route on civil rights and interracial marriage there would have been a lot less of both for a lot longer. Would you really have preferred to let the Deep South decide when to give equal protection to non whites rather than have it forced judicially?

You might be, but the founders weren’t. That’s why we have courts to rein in the majority when they overreach and do something unconstitutional. You too find the courts useful in this regard, but only if it is on an issue in which you disagree with liberals/Democrats. Because that is your true objection here. This is a liberal cause, and while you don’t consider yourself anti-gay, you feel compelled to find disagreement and acrimony with liberals at every turn, regardless of principles. This reveals, of course, a lack of principles.